PLEA BARGAIN: CJN slams EFCC

By Ikechukwu Nnochiri
ABUJA — CHIEF Justice of Nigeria, CJN, Justice Dahiru Musdapher, yesterday, blasted the Economic and Financial Crimes Commission, EFCC, for smuggling the plea bargain concept, which he described as dubious into our legal system to prosecute public officers involved in money laundering and looting of public treasury.

He insisted that the concept was not only dubious, but was “never part of the history of our legal system- at least until it was surreptitiously smuggled into our statutory laws with the creation of the Economic and Financial Crimes Commission, EFCC.”

CJN, Dahiru Musdapher

Justice Musdapher stated this on a day both the Nigerian Bar Association, NBA, and the National Human Rights Commission, NHRC, challenged his viewpoint on the issue, saying his “claim that the plea-bargain system was unknown to the Nigerian law did not fairly reflect the state of the law.”

The arguments were exchanged at a two-day capacity building workshop for judiciary correspondents which commenced in Abuja yesterday with the theme, “plea bargain and other emerging trends in criminal justice administration in Nigeria.”

Justifying his decision to abolish the system which he described as obnoxious, the CJN argued: “when I described the concept as of ‘dubious origin’, I was not referring to the original raison-d’être or the juridical motive behind its conception way back either in the United States or England in the early 19th Century, I was referring to the sneaky motive behind its introduction into our legal system, or its evident fraudulent application.

“You will learn that plea bargain is not only “condemnation without adjudication” as John Langbien decried it, it is as some other critics say) “a triumph of administrative and organizational interests over justice.”

“At its very best it penalizes the innocent who may be tempted to plead guilty to avoid being actuated by judicial default and at its most obnoxious extent it grants ‘undue leniency’ as reward to criminals simply for pleading their guilt.

“You will see also that plea bargain is not only a flagrant subordination of the public’s interest to the interest of ‘criminal justice administration’, but worst of all, the concept generally promotes a cynical view of the entire legal system.

“I have said that our wavering disposition on the ethical standards set by your noble profession guarantees or jeopardizes our peace, security and progress. And it is the reason that I have chosen this occasion to speak-with all sense of solemnity-on a matter that has continued to eat away at even the modest gains that we seem to be making in reforming both the infrastructure and the overall judicial template of the Nigerian Judiciary.”

Meanwhile, in his own presentation at the event, the Chairman Governing Council of the NHRC, Dr Chidi Anslem Odinkalu, contended that “the claim that the plea bargain was never part of any Nigerian law until 2004 when the EFCC was established is rather dubious.”

He said: “Section 180(1) of the Criminal Procedure Act provides that when more charges are made against a person and a conviction has been had on one or more of them, the prosecutor may, with the consent of the court, withdraw the remaining charge or charges or the court, of its own motion, may stay trial of such charge or charges.

Legal basis for plea bargain

“This clearly provides legal bases for a plea bargain in Nigeria well before the EFCC Act in 2004. The purpose of plea bargain under the EFCC Act is mostly asset recovery. The Criminal Procedure Act and section 13(2) of the EFCC Act are not the only laws in Nigeria that provide for the plea bargain. Section 76 of the Criminal Justice Law of Lagos state, 2007, extensively regulates the use of plea bargain in courts in Lagos

“When the Honourable Chief Justice, therefore, appeared to claim that the plea bargain was unknown to the Nigerian law, that view did not fairly reflect the state of the law. If the CJN or any judge wants to strike it down, they should do so when the next bargain comes before them in court for certification. At least, in such a case, they will receive the benefit of arguments and will make an informed decision.

“There are good policy reasons for the plea bargain: no criminal justice system can possibly dispose of all crimes committed within its purview. The concept can assist in ensuring the disposal of criminal cases and management of criminal case dockets. It can minimize delay in case throughput; and can ensure conviction or accountability in cases that could easily be lost or mired in delay or attrition. As a safeguard, a bargain is always subject to judicial approval.

“This is not to say that the plea bargain is or has been used properly in Nigeria. It has not been so. For a practice that is clearly amenable to abuse, there is need for clear policy on its use and deployment”, he added.

Likewise, Chairman of the NBA Abuja chapter, Mazi Osita Osigwe, adopted the position of the NHRC boss, even as he stressed need for the CJN to galvanize the Body of Attorney Generals to provide judicial policy guidelines on the administration of plea bargain in the country.

Justifying the application of the plea bargain, EFCC Chairman, Ibrahim Lamorde who was represented at the event by the agency’s Director of Legal Unit, Mrs. Elizabeth Ayodele, said the concept has aided the commission to successfully prosecute high profile cases including conviction of former governor of Bayelsa and Edo states, Dieprieye Alamiesieigha and Lucky Igbinedion, former IGP, Tafa Balogun and C.E.O of Oceanic Bank Plc, Mrs. Cecilia Ibru.

The EFCC boss maintained that the plea bargain concept permits quick resolution of criminal proceedings, saying it helped the anti-graft agency to overcome the challenges of unnecessary delays and the uncertainties of trials and appeals.

He noted that the EFCC is empowered under section 14 [2] of its Act, to “ compound any offence punishable under the Act by accepting such sum of money as it thinks fit not exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.”

Earlier, Chairman of National Association of Judiciary Correspondents, NAJUC, Mr Joe Nwankwo, explained that the workshop was to acquaint journalists covering the judiciary with the necessary skills to enable them discharge their duties effectively through training and re-training processes.